Browsing by Author "Harasgama, K"

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Open Access
Combatting Non-Consensual Pornography: A Comparative Study
(Faculty of Humanities and Sciences, SLIIT, 2024-12-04) Jayamaha, S; Harasgama, K; Mahingoda, C
consensual pornography, colloquially known as “revenge porn,” has witnessed a troubling proliferation across various jurisdictions, carrying profound and often devastating repercussions for its victims. This paper conducts an in-depth review of the revenge porn laws with reference to identified key elements in such laws, namely, actus reus and the mens rea of the offence, rules relating to platform liability, victim protection and available remedies and penalties. As such the study is conducted in respect of laws in the United States, the United Kingdom, Singapore, India, Australia and Sri Lanka and finds that there is commonness as well as some diversity in the approaches. While the actus reus element underlying these legal frameworks exhibits some degree of uniformity, significant disparities emerge with regard to the mens rea requirement. Notably, jurisdictions such as the UK and US exhibit more limited scopes, a limitation compounded in the US by the provision of special immunities to Internet Service Providers (ISPs) and website/platform hosts. The paper also highlights the importance of adopting a comprehensive two-pronged strategy, encompassing both civil reliefs and penal laws to effectively fight NCP. As such, the paper attempts to provide an overall account of what would be the most effective legal approach in relation to the key components identified therein in the background of some common challenges posed by the inherent nature of NCP in this digital age.
Open Access
Consent in Sexual Offences: A Comparative Analysis of UK and Sri Lankan Law
(School of Law, Faculty of Humanities and Sciences, 2025-10-10) Harasgama, K; Jayamaha, S.; Mahingoda, C. B
Consent is a vital element in sexual offences, acting as a crucial determinant in differentiating consensual sexual activities from illegal acts. This condition emphasises that sexual activities must entail voluntary, informed consent, so aligning with broader human rights standards of personal autonomy and the ability to make uncoerced choices. The study endeavours to provide a comparative examination of the legal framework concerning 'consent' in the UK and Sri Lanka, while critically assessing the strength of the current laws. Sexual Offences Act of 2003 in the UK employs a nuanced approach, whereas Sections 363 and 364 of the Penal Code of Sri Lanka are restricted in scope. The study reveals that UK and Sri Lankan legislation possess core similarities regarding 'consent' in sexual offences, however they diverge considerably in their different scopes. The paper examines the vitiating factors of 'consent' in detail, identifying capacity to consent, intoxication, regulations concerning minors and vulnerable individuals, such as those with mental disorders, and instances of deception as recognised by law as undermining the element of 'consent' and impacting the Defendant's culpability, despite variations in the scope addressed by different legal statutes. While the Penal Code has several useful provisions, Sri Lankan law comparably has weaker statutory safeguards and problematic exclusions. The paper concludes by suggesting that Sri Lanka needs comprehensive changes that prioritise continuous consent, establish presumptions, and recognise incapacitating situations like unconsciousness and intoxication to minimise these gaps.
Embargo
Fighting New Demons with Older Weapons: Countering Online Harassment with Actio Injuriarum under the Law of Delict
(Faculty of Humanities and Sciences,SLIIT, 2021-09-25) Jayamaha, S; Harasgama, K; Rathnayaka, H
Online harassment has undoubtedly become a menace that has severe negative impacts on victims and the society at large. Owing to its grave nature, jurisdictions around the world have utilized different branches of law such as criminal law, tort law and the intellectual property law to redress the victims of online harassment as well as to penalize the perpetrators. This paper attempts to analyse whether actio inuriarum under the law of delict can be employed as a corrective justice mechanism to provide solatium to victims of online harassment, considering the severe emotional distress they undergo due to harm caused to their dignity, reputation and privacy. The paper adopts the view that actio injuriarum provides an effective remedy to plaintiffs for impairment of dignity, person and reputation, caused by insult and thereby analyses how it could be utilized as a general remedy for sentimental damages suffered by the victims of online harassment. It concludes with a finding that the principles and elements of actio injuriarum are broad enough to redress the victims of online harassment, which is releatively a new phenomenon, although there may be little to no case law illustrating the exact position upto date.
Open Access
Third-Party Financing in Investor-State Dispute Settlement: For Better or for Worse?
(Faculty of Humanities and Sciences, SLIIT, 2023-11-01) Jayamaha, S; Harasgama, K
The proliferation of international investments during the past few decades has contributed to the rise in the number of disputes that are submitted to Investor-State Dispute Settlement forums. Concomitantly, the criticisms of the conventional ISDS have also increased. Critics often refer to certain inherent flaws in the system inter alia the involvement of third-party financing for ISDS cases. With the growing costs and the significant interests involved in investment disputes, ‘investment claims’ themselves have emerged as a new class of assets that international actors pursue. In such circumstances, this study attempts to evaluate the existence of TPF for ISDS claims, and how that could contribute to or undermine the essence of ISDS, as an impartial dispute settlement mechanism which balances and accommodates diverse interests of the parties involved, namely, the largely commercial interests of the investors and the macro-economic, public and social interests of the host states. This study was conducted as a library-based study with relevant case law being analysed to comprehend the trend of TPF in ISDS cases. Evidently, TPF is not unwelcoming in its entirety. While it could inter alia provide financial support for meritorious claims which are otherwise unable to withstand the rising costs of ISDS which is positive, it could also have the negative effect of inter alia untenably increasing the number of ISDS cases by minimising the risk factor and possibly encouraging marginal claims. The paper concludes by recommending both the bilateral treaties and the international arbitration institutions should strive to achieve transparency in the matter of ISDS where TPF is involved.
Embargo
Violation of Human Dignity through Online Harassment: A Case for Stronger Protection of Privacy in Sri Lanka
(Faculty of Humanities and Sciences, SLIIT, 2022-09-15) Harasgama, K; Jayamaha, S
Human dignity, a concept widely discussed philosophical, political and legal spheres, has gained importance with its recognition under the Universal Declaration of Human Rights, as a foundation of human rights. Dignity is understood to be inherent in humans. Scholars observe dignity to be twofold; firstly, dignity by reason of humans having the capacity to rationalize and secondly humans as social animals having a sense of self-worth and social standing. Human Dignity, therefore, is universally recognized so as human rights in general. On the contrary, Privacy is just another right and does not command a wide and equal standing in every society. Privacy relates to the personal space; be it bodily, informational, territorial or communicational within which a person expects to be free from scrutiny. Privacy refers to the limit to which one desires to expose himself to others. It is understood that privacy is one element which contributes to the notion of dignity. Privacy violations will therefore lead to the degradation of human dignity. This is illustrated in cases of online harassment as publication of intimate, sexually explicit video/images of individuals, impersonating victims, and defaming or insulting victims in public categorically invade the privacy of individuals thus violating their human dignity. Sri Lanka has a piecemeal approach to protecting privacy, which is scattered around various statutes and case law, and is of limited scope. Upholding dignity, therefore, is challenged although the Sri Lankan Constitution and case law identify dignity as foundational. Hence, it is argued that a state which is concerned with upholding the dignity of its citizens should be equally concerned about protecting the privacy of those citizens.